Pokkalathkandy P. Gopinathan vs Kammalatt Baby

M.L. Joseph Francis, J.—This appeal is filed by the petitioner in O.P.489/11 on the file of the Family Court, Kozhikode. The respondent herein was the respondent in that Original Petition, which was filed by the petitioner to cancel the order in O.P.143/98 dated 30.11.1998. The facts of the case are briefly as follows : The petitioner in the O.P. married the respondent on 14.12.1972 and they lived as husband and wife, for a period of 4= years and three children were born in that wedlock. The respondent/wife filed O.P.212/1981 for divorce, which was allowed. While granting divorce, Rs. 500/- was granted as permanent alimony per month to the wife. The appeal filed by the husband as M.F.A.No.525/1983 before this Court was dismissed. The respondent/wife, thereafter, filed O.P.143/98 for enhancement of permanent alimony and that petition was allowed by the Family Court and the permanent alimony was enhanced to Rs. 750/- per month, as per order dated 30.11.1998. The appeal filed by the husband was dismissed by this Court. Thereafter, the husband is permanently paying Rs. 750/- to the respondent/wife. The appellant/husband filed O.P.489/11 before the Family Court, Kozhikode to cancel that order due to changed circumstances. The respondent filed a detailed counter affidavit.

In the Family Court, the petitioner was examined as PW1 and Exts.A1 to A6 were marked on the side of the petitioner. On the side of the respondent, RW1 was examined and Ext.B1 was marked. The Family Court, on considering the evidence on record, dismissed that petition on finding that there is no sufficient evidence and circumstance to rescind the order passed in O.P.143/98. Against that order, the petitioner filed this appeal.

When this appeal came up for admission, the learned counsel for the appellant advanced the following arguments : It was argued that the respondent obtained the order in O.P.143/98 dated 30.11.1998, by suppressing material facts. The learned counsel for the appellant submitted that the respondent was holding property as per document No. 3332/92 of SRO, Meenchanda and she developed that property and she is earning an income not less than Rs. 25,000/- per month. It was further submitted that the appellant/husband has retired from a Bank and is getting only a meagre amount as pension and the appellant has to maintain his second wife and child.

It is well settled that the change in the pecuniary or other circumstances of the party paying or receiving permanent alimony would justify an increase or decrease in the monthly maintenance originally fixed. The change in circumstance, alleged by the appellant is that at the time of consideration of O.P.143/98, the wife had suppressed her source of income. In that Original Petition, the petitioner/wife pleaded that she was not possessing any property, which was devolved upon her after the death of her mother. The appellant/husband alleges that the respondent got 24.15 cents of property as per partition deed No. 3332/92 of SRO, Meenchanda. Ext.A2 is the copy of that partition deed. As per Ext.A2, the respondent obtained 24.15 cents of property. Ext.B1 is the copy of the document No. 1031/05 dated 18.3.2005 of SRO, Meenchanda, by which, the respondent gave 7 cents of property to her elder daughter. The allegation of the appellant is that the respondent had constructed a flat in her property and rented out the same and she is getting Rs. 25,000/- as monthly rent. The respondent contended that she has sold 7 cents of property as per Ext.B1, out of the said 24.15 cents, for the purpose of the marriage of her second daughter and that she had borrowed some amount from her elder son-in-law and therefore, 7 cents of property was sold to her elder daughter. The respondent contended that the elder daughter and the son-in-law constructed a small flat therein and they are receiving income from it. The respondent further contended that she has no flat or income and that she has also no income from the remaining property. The appellant/husband has not produced any document to show that the respondent is having a flat and is receiving rent from that flat. The appellant alleges that he was working in a Bank and at present, he has retired from service and is getting only Rs. 12,000/- as monthly pension. According to the respondent, the appellant is getting Rs. 25,000/- as monthly pension. The appellant has not produced any document to show his monthly pension. Therefore, as observed by the Family Court, adverse inference can be drawn against the appellant regarding this aspect. When the petitioner was examined as PW1, he admitted that the cost of living has increased at present. As observed by the Family Court, Rs. 750/- per month granted as monthly maintenance is only a meagre amount, considering the present cost of living. The petitioner has not produced any document to show that he has no sufficient income to give Rs. 750/- per month to the respondent/wife, as maintenance. Therefore, we are of the view that the Family Court is justified in dismissing O.P.489/11. Accordingly, this appeal is dismissed in limine, as it is without any merits. There is no order as to costs.